Understanding Spousal Maintenance in Australia.
Divorce and separation can put a significant financial strain on both parties, but it can be especially tough for someone who was financially dependent on their spouse. If you’re struggling to cover your reasonable living expenses after separation, you may be eligible for spousal maintenance, but how do you know if you qualify, and what’s the process for applying?
In Australia, spousal maintenance is governed by the Family Law Act 1975 (Cth) and is designed to provide financial support to a spouse or de facto partner who cannot adequately support themselves. Courts consider several factors, including income differences, health conditions, and childcare responsibilities, when deciding whether spousal support should be granted.
Navigating the legal requirements can be complex, which is why consulting a family lawyer is crucial. They can help you understand your rights, assess your eligibility, and guide you through the application process to ensure you receive the financial support you need. In this article, we’ll break down the legal framework, eligibility criteria, and key case precedents to help you make informed decisions about spousal maintenance.
What is Spousal Maintenance?
Spousal maintenance refers to financial support paid by one spouse to the other following a separation or divorce. It differs from property settlement, as it specifically addresses the ongoing financial needs of a spouse who is unable to support themselves adequately. Unlike child support, which is intended for the welfare of children, spousal maintenance focuses on the financial well-being of the dependent spouse.
The legal foundation for spousal maintenance is found in Section 72 of the Family Law Act 1975 (Cth), which states:
“A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support themselves adequately.”
A similar provision applies to de facto relationships under Section 90SF(1) of the Family Law Act 1975.
To qualify for spousal maintenance, an applicant must prove:
- They cannot meet their reasonable financial needs due to separation.
- Their former partner has the financial capacity to provide support.
Factors Considered in Spousal Maintenance Applications.
When assessing spousal maintenance applications, Australian family courts examine multiple factors, including:
1. Financial Needs and Resources.
The court considers the financial position of both parties, including income, assets, liabilities, and expenses. If one party has significant income while the other struggles to meet basic needs, maintenance may be awarded.
In Hall v Hall (2016) HCA 23, the High Court reaffirmed that spousal maintenance is not about equalising incomes but rather ensuring that a spouse who cannot meet reasonable expenses receives necessary financial assistance.
2. Age and Health of Both Parties.
If the applicant is of advanced age or suffers from a medical condition that limits their ability to work, courts are more likely to award financial support after divorce.
3. Care of Children.
If one spouse is the primary caregiver for young children, their ability to work may be limited, strengthening their claim for spousal maintenance. Courts recognise that full-time parenting can impact earning capacity.
4. Standard of Living During Marriage.
Courts consider the standard of living established during the marriage and whether the dependent spouse can maintain a similar standard post-separation.
5. Length of the Marriage or De Facto Relationship.
Longer marriages typically result in stronger claims for spousal maintenance, especially if one party sacrificed career opportunities to support the household.
6. Financial and Non-Financial Contributions.
Contributions to the marriage, including unpaid domestic work and child-rearing, are factored into spousal support eligibility.
How to Apply for Spousal Maintenance.
Applying for spousal maintenance involves several legal steps. It is advisable to seek legal aid for divorce to ensure compliance with procedural requirements.
1. Attempting to Reach an Agreement.
Before filing a court application, parties are encouraged to negotiate maintenance arrangements. Binding financial agreements can be made before, during, or after marriage to determine separation financial assistance.
2. Filing an Application with the Family Court.
If an agreement cannot be reached, the applicant can file a spousal maintenance application with the Federal Circuit and Family Court of Australia (FCFCOA).
The application must include:
- A financial statement detailing income, expenses, assets, and liabilities.
- Evidence of the applicant’s inability to support themselves.
- Proof of the respondent’s ability to provide financial assistance.
3. Court Consideration and Orders.
The court assesses the application based on Section 75(2) of the Family Law Act 1975, which outlines factors including financial needs, earning capacity, and caregiving responsibilities.
In Bevan v Bevan (1995) FLC 92-600, the court ruled that an applicant must demonstrate genuine financial need, not just a desire to maintain a higher standard of living.
4. Types of Spousal Maintenance Orders.
The court may order spousal maintenance in various forms:
- Periodic payments (e.g., weekly or monthly payments).
- Lump sum payments for financial security.
- Specific expense payments (e.g., rent, medical costs).
5. Enforcement of Maintenance Orders.
If a spouse fails to comply with court-ordered spousal maintenance, enforcement action can be taken, including wage garnishment or property seizure.
How Long Does Spousal Maintenance Last?
Spousal maintenance orders are usually not permanent. The duration depends on:
- When the recipient becomes self-sufficient.
- A specified timeframe set by the court.
- A significant change in circumstances, such as remarriage.
In Smith v Smith (1991), the court ruled that maintenance should not create financial dependency indefinitely but rather assist in achieving self-sufficiency.
Can Spousal Maintenance Be Varied or Terminated?
A spousal maintenance order can be modified or terminated under the following circumstances:
- Change in financial circumstances – If the recipient gains employment or inherits wealth, the order may be varied or canceled.
- Remarriage or cohabitation – If the recipient enters a new relationship, spousal support eligibility may cease.
- Death of either party – Maintenance obligations typically end upon the payer’s death, unless specified otherwise in court orders.
In some cases, the court may extend maintenance if the recipient is unable to become self-sufficient due to age, disability, or other significant factors. This highlights the importance of proper legal guidance when applying for or contesting family law maintenance.
Alternative Financial Support Options.
If spousal maintenance is not granted, individuals may explore alternative financial support options:
- Centrelink benefits – Government financial assistance for low-income earners.
- Property settlement – Division of marital assets to ensure financial stability.
- Child support – Financial contributions for child-rearing expenses.
It is essential to evaluate all options to secure financial security post-separation.
Conclusion
Spousal maintenance plays a crucial role in ensuring financial fairness after separation. To qualify, an applicant must demonstrate financial need and the former spouse’s ability to pay. Australian family courts consider multiple factors, including income, health, caregiving responsibilities, and contributions to the marriage.
Given the complexity of spousal support eligibility, seeking legal aid for divorce is recommended to navigate the application process effectively. Whether through negotiation or court intervention, securing separation financial assistance can provide stability during a challenging transition.
If you are considering applying for spousal maintenance, consulting a qualified family lawyer can help you understand your rights and obligations under Australian law. Ensuring proper legal representation can make a significant difference in achieving a fair outcome and securing your financial future.
